UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 94-5569

WILLIE DAVID BROWN, a/k/a

Yellowboy,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CR-93-264-P)

Submitted: December 29, 1998

Decided: January 21, 1999

Before MURNAGHAN, NIEMEYER, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, Robert H. Hale,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Robert J. Conrad, Jr., OFFICE OF THE UNITED

STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Willie David Brown appeals his convictions and sentence imposed

after a plea of guilty to conspiracy to possess with intent to distribute

and distribution of cocaine and cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (1994); possession with intent to distribute and distribution of cocaine base and aiding and abetting in the possession

with intent to distribute cocaine base on or about June 11, 1992, in

violation of 21 U.S.C. § 841(a)(1), 18 U.S.C.§ 2 (1994); knowingly

using fire and explosives in committing the felony of conspiracy to

possess with intent to distribute cocaine and cocaine base, in violation

of 18 U.S.C. § 844(h) (1994); and possession with intent to distribute

and distribution of cocaine base on or about November 2 and 4, 1993,

in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2. We affirm

Brown's convictions and sentence.

Brown was the leader of a crack cocaine distribution conspiracy

operating in Charlotte, North Carolina. Brown had approximately

eight to ten dealers working for him, whom he supplied with crack

cocaine and who would then return part of the profits to Brown.

Brown and several of his co-conspirators were arrested following two

undercover buys, one conducted on November 2 and the other conducted on November 4, 1993. Brown pled guilty to seven counts of

the eleven-count indictment the day before his scheduled trial. The

district court sentenced him to 420 months' imprisonment on the drug

counts and 60 months' imprisonment to run consecutively on the

count charging Brown with the knowing use of fire and explosives in

commission of a felony, in violation of 18 U.S.C.§ 844(h).

On appeal, Brown contends that the district court erred by finding

him guilty of both possession with intent to distribute crack cocaine

on November 2 and 4 and distribution of crack cocaine on November

2 and 4. Brown contends that his convictions for possession with

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intent to distribute crack cocaine should merge with his convictions

for distribution of crack cocaine, because the convictions arose out of

the same two undercover buys, and the Government did not show that

his possession of crack cocaine existed separately from the actual distribution. We disagree.

The evidence showed that Brown was the leader of the conspiracy

and directed its drug distribution activities. He possessed and then

doled out the conspiracy's drugs for distribution by his coconspirators. Brown indicated to undercover agent Michael Lewis

during both undercover buys that he [Brown] was unable to supply

the full amount of crack cocaine Lewis requested because he [Brown]

only had so much crack cocaine remaining to sell. Further, Brown's

co-conspirators, under Brown's direction and control, possessed the

drugs prior to and apart from the actual distribution. See United States

v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985). Accordingly, there is

no merger, and Brown's convictions for both possession with intent

to distribute and distribution of crack cocaine do not amount to plain

error. See United States v. Olano, 507 U.S. 725, 731-32 (1993);

United States v. Meredith, 824 F.2d 1418, 1426 (4th Cir. 1987).

In addition to the formal brief filed on Brown's behalf by counsel,

Brown has filed a motion to file a supplemental brief along with the

brief. In that supplemental brief, Brown contends that Amendment

505 to the Guidelines, which became effective subsequent to Brown's

sentencing, alters his sentencing range and thus a reduction in sentence is warranted. Although we express no opinion on the merits of

this claim, we note that the proper procedure to obtain a sentence

reduction based upon retroactive amendment of the Guidelines is by

motion in the trial court. See 18 U.S.C.§ 3582(c)(2) (1994). Accordingly, although we grant Brown's motion to file his supplemental

brief, we deny his sentencing claim. The other claims which Brown

raises in his brief lack merit.

For these reasons, we affirm Brown's convictions and sentence.

We dispense with oral argument because the facts and legal contentions are adequately set forth in the materials before the Court and

argument would not aid the decisional process.

AFFIRMED

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